Starr v. Charlotte Paper Co.

• Decision Date: 15 July 1970
• Docket Number: No. 7026IC374,7026IC374
• Court: North Carolina Court of Appeals
• Parties: Leslie T. STARR, Jr., Employee, v. CHARLOTTE PAPER COMPANY, Inc., Employer, and Continental Casualty Company, Carrier.

Page 342

175 S.E.2d 342

8 N.C.App. 604

Leslie T. STARR, Jr., Employee, v. CHARLOTTE PAPER COMPANY, Inc., Employer, and Continental

Casualty Company, Carrier.

No. 7026IC374.

Court of Appeals of North Carolina.

July 15, 1970.

Certiorari Denied Aug. 28, 1970.

Hubert E. Olive, Jr., Lexington, for plaintiff appellee.

Kennedy, Covington, Lobdell & Hickman, by Edgar Love, III, Charlotte, for defendants appellants.

MALLARD, Chief Judge.

The evidence for the plaintiff tended to show, except where quoted, that after the accident of 8 October 1963, and continuously since that time, he was paralyzed from the tenth vertebra down. On 17 March 1969 he could not walk because of the original injury and used a wheelchair. He lived with his parents in Charlotte. Plaintiff testified:

'* * * After the accident, I was paralyzed from the tenth vertebra down and had no sensation whatsoever.

That condition was the result of the accident on October 8, 1963, and has not changed since that time. Since then I have had no feeling whatsoever in my legs and lower abdomen. Feeling or sensitivity stops right around the navel.

* * * I have a room of my own there in the home. It has twin beds in it and mine is against the wall. I put the wheelchair beside it and get in bed. There is a nightstand there. I had a sheet and blanket on my single bed and I had to put pillows between my legs because I have right many muscle spasms. I sleep on a sheepskin pelt which I lay on and which comes right about my navel don down.

I woke up about 3:30 that night. My father had been ill and he had been sick that night and I called mother to get me some water. I lit a cigarette and put it in the ash tray in the wheelchair. I had a muscle spasm and pulled my covers down, back, and straightened my legs and pillows back, and covers.

I don't remember anything after that except coming to when the smoke woke me up.

Muscle spasm is contracture, legs jump around, kick around. I have no control over this. When I had the muscle spasm, I pulled the sheet and blanket back.

My wheelchair was beside the bed at that time. The ash tray was in the wheelchair and the bed was a little over a foot from the wheelchair.

To help the muscle spasm in my legs, I moved it around and straightened the pillows and pulled the covers back up. The pillows are the ones I had between my legs.

The next thing I remember was smoke. After I smelled it, I realized there was fire and I reached down and tried to find it and called my mother.

I was semi-conscious.

I was burned on my left leg, on my abdomen, on the right ankle below my navel. Before I smelled the smoke I did not feel a thing. Even in the hospital I did not feel any pain.

I was in the hospital for 73 days, my attending physicians being Dr. Chaplin Dr. Walker, Dr. Berkeley, and Dr. Jett. The treatment I had was skin grafts on my left leg and lower abdomen. I had five of them.'

The plaintiff's mother testified that at about 3:30 a.m. on 17 March 1969 she took him some water; that a little before 6:00 the plaintiff called to her; she smelled smoke; she went into her son's room and saw smoke over the foot of his bed; there was no flame; 'the covers was just smoldered and burned'; and he had received burns and his legs were black and crusty looking.

There is medical evidence that on 19 December 1963 a physical examination of the plaintiff revealed:

'Absence of voluntary motion of legs. The lower extremities are flaccid, are flexic, and there is total anesthesia below the 10th dorsal dermatome.'

There is additional medical evidence that on 9 September 1964 '(t)his man has permanent, very extensive physical disability as a result of a fracture-dislocation in the low dorsal spine region, leaving him extensive paralysis of the legs, bowel, and bladder.'

There is also medical evidence tending to show that on 17 March 1969 the plaintiff suffered second and third degree burns to the lower portions of his body.

Defendants' first three assignments of error relate to the failure of the hearing commissioner to find that the plaintiff (1) did not turn the light on in his room while smoking a cigarette, (2) went to sleep in a darkened room leaving a half-smoked cigarette burning in an ash tray in a wheelchair less than a foot from his bed, and (3) that plaintiff went to sleep without putting out the cigarette he had been smoking or returning the ash tray to the night stand or checking to see if his bed clothes had come in contact with the burning cigarette.

The Commission is not required to make a finding as to each fact presented by the evidence. Guest v. Brenner Iron & Metal Co., 241 N.C. 448, 85 S.E.2d 596 (1955); Morgan v. Thomasville Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968). The facts mentioned in appellants' first three assignments of error are not material in this case. The failure to so find was not prejudicial error. Thomason v. Red Bird Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952).

In assignments of error four and five, appellants assert that the hearing commissioner and the Commission committed error in finding that (1) '(t)he plaintiff's physical condition which resulted from the injury received in the accident of October 8, 1963, constituted a proximate cause of the injury and burns which occurred on March 17, 1969,' and (2) 'the fact that plaintiff had no feeling in the lower extremities and had muscle spasms of the leg and had to have his wheelchair against the bed constituted proximate cause of the burns received.'

Neither of these two assignments of error fully set forth the findings of the hearing commissioner. What the hearing commissioner found with respect to these two assignments of error was as follows:

'The plaintiff's physical condition which resulted from the injury received in the accident of October 8, 1963, constituted a proximate cause of the injury and burns which occurred on March 17, 1969. Due to the earlier injuries the plaintiff had no feeling in his lower extremities and had muscle spasms of the legs. The muscle spasms made it necessary for him to turn back the covers, massage his legs, and cover himself again. His condition also made it necessary for him to have his wheelchair against the bed. These factors constituted proximate causes of the burns received. Also, the paralysis resulting from the previous injury kept the plaintiff from realizing that he was being burned over the areas heretofore described.'

In the case of Petty v. Associated Transport, Inc., 276 N.C. 417, 173 S.E.2d 321 (1970), the Court said that the Act should not be given a 'technical, narrow and strict construction.'

In the case of Lawrence v. Hatch Mill, 265 N.C. 329, 144 S.E.2d 3 (1965), the Supreme Court said:

'In compensation cases the Commission finds the facts. If the findings have evidentiary support in the record, they are conclusive. However, the question whether the evidence is sufficient to support the findings is one of law to be determined by the courts. The Legislature has provided that the Workmen's Compensation Act shall be liberally construed but it does not permit either the Commission or the courts to hurry evidence beyond the speed which its own force generates.'

In the case before us there was ample evidence for the Commission to find that the plaintiff suffered second and third degree burns on portions of his body because of a loss of feeling and sensitivity therein as a result of the original accident. It is clear from the evidence in this case that if the plaintiff had had normal feeling and sensitivity in the lower portions of his body, he could not have slept, to be awakened later by smoke, while the fire smoldered in his bed, 'charred' his legs until they were 'black and crusty...